1 Act 24 of 1956. Sec 37C as amended by sec 15 of the Financial Services Laws General Amendment Act 22 of 2008 provides in pertinent part that: “(1) Notwithstanding anything to the contrary contained in any law or in the rules of a registered fund, any benefit payable by such a fund in respect of a deceased member, shall … not form part of the assets in the estate of such a member, but shall be dealt with in the following manner: (a) If the fund within 12 months of the death of the member becomes aware of or traces a dependant or dependants of the member, the benefit shall be paid to such dependant or, as may be deemed equitable by the board, to one of such dependants or in proportions to some of or all such dependants… (2) For the purpose of this section, a payment by a registered fund to a member nominated trustee contemplated in the Trust Property Control Act, 1988 (Act No 57 of 1988); a person recognised in law or appointed by a Court as the person responsible for managing the affairs or meeting the daily care needs of a dependant or nominee; or a beneficiary fund, for the benefit of a dependant or nominee contemplated in this section shall be deemed to be a payment to such dependant or nominee.”

2 See Sithole v ICS Provident Fund and Another [2000] 4 BPLR 430 (PFA)Google Scholar, where the adjudicator set aside the board's decision because the board relied on customary law instead of sec 37C to distribute the benefits, and ruled that sec 37C specifically takes precedence over any law which includes customary law. Jacobs v Central Retirement Annuity Fund [2001] 1 BPLR 1488 (PFA)Google Scholar held that the fact that the second respondent had lodged a claim against the estate under the Maintenance of Surviving Spouses Act has no bearing on the payment of death benefits arising out of the rules of a pension fund; this payment is exclusively regulated by sec 37C regardless of any other law or rules of a fund. Matene v Noorberg Group Life Assurance Scheme [2001] 2 BPLR 1604 (PFA)Google Scholar.

3 See Wood-Bodley, M Cameron “Freedom of testation and the Bill of Rights: Minister of Education v Syfrets Trust Ltd” (2007) 124 South African Law Journal 687Google Scholar, discussing the freedom of testation under South African law.

4 Intestate Act 81 of 1987.

5 Dobie NO v National Technikon Retirement Pension Fund [1999] 9 BPLR 29 (PFA)Google Scholar; Mthiyane v Fedsure Life Assurance Ltd and Other [2001] 7 BPLR 2230 (PFA)Google Scholar.

6 See Mashazi 8 BPLR 3703 (W); Van de Berg v Durban Pension [2003] 3 BPLR 4518 (PFA)Google Scholar; Musgrave v Unisa Retirement Fund [2000] 4 BPLR 415 (PFA)Google Scholar.

7 Mashazi, id at 3705.

8 Dobie NO, above at note 5 at 41F–J.

9 While acknowledging the worthy intentions of the legislature to advance the interests of dependants in remote rural areas, the adjudicator has noted that there is a legitimate concern about the practical difficulties of tracing such dependants: ibid.

10 [2009] 1 BPLR 46 (PFA).

11 Clark, B “Families and domestic partnerships” (2002) 119 South African Law Journal 634 at 635Google Scholar. Also see Hutchings, S and Delport, E “Cohabitation: A responsible approach” 1992 De Rebus 121Google Scholar.

12 2005 (5) BCLR 446 (CC), para 65.

13 [2000] 3 BPLR 31 (PFA).

14 [2005] 5 BPLR 463 (PFA).

15 [2007] 3 BPLR 288 (PFA), para 5.2.

16 Act 25 of 1961.

17 Act 120 of 1998.

18 Act 17 of 2006.

19 Pension Funds Amendment Act 11 of 2007, sec 1(u).

20 The Muslim marriage is not recognized as an institution in South Africa, although courts have recognized Muslim marriages in specific circumstances. See Ismail v Ismail 2007 4Google Scholar SA (E) 561C–E; Daniels v Campbell NO and Others 2004 (5) SA 331 (CC)Google Scholar; Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening) 1999 (4) SA 1319 (SCA)Google Scholar; and Khan v Khan 2005 (2) SA 272 (T)Google Scholar.

21 For a criticism of this judgment, see Cooke, A “Choice, heterosexual life partnership, death and poverty” (2005) 122 South African Law Journal 542Google Scholar; Bonthuys, E “Institutional openness and resistance to feminist arguments: The example of the South African Constitutional Court” (2008) Canadian Journal of Women & Law 1Google Scholar.

22 Above at note 13 at 329.

23 Id at 329–30.

24 Mhango, MO “An examination of the accurate application of the dependency test under the Pension Funds Act” (2008) 20 South African Mercantile Law Journal 126 at 130Google Scholar.

25 Ibid.

26 Above at note 13 at 330.

27 Above at note 14.

28 It is important to note that the decisions of the Pension Funds adjudicator create a precedent and therefore the adjudicator must give reasons for any departure from a previous judgment. See above at note 15.

29 Above at note 14, para 16.

30 Id, para 17.

31 Ibid.

32 [2005] 2 BPLR 180 (PFA).

33 Id, para 10.

34 Hlathi, para 4.

35 Ibid.

36 Sec 30G(d) of the Act provides that the parties to a complainant shall be “any other person who the Adjudicator believes has a sufficient interest in the matter to be made a party to the complaint”.

37 Hlathi, para 6.

38 Id, para 13.

39 Id, para 60.

40 Id, para 28.

41 Id, paras 32–33.

42 Id, para 34.

43 Ibid.

44 Ibid.

45 Id, para 35.

46 See Sachs J's dissenting opinion in Volks, above at note 12, para 164.

47 Swart, M “The Carfininan curse: The attitudes of South African judges towards women between 1900 and 1920” (2003) 120 South African Law Journal 540Google Scholar, discussing the attitudes of judges towards women in the early years of the last century and arguing that judges then were happy to retain the status quo that women are subordinates to men.

48 The preamble to the Constitution of the Republic of South Africa, 1996.

49 Currie, I and De Waal, JThe Bill of Rights Handbook (2005, Juta & Co) at 231Google Scholar.